Tenant Toolkit: Unlawful Detainer Defense

Unlawful Detainer: Answer Within Five (5) Days Using Strong Defenses.

Time is of the essence when your landlord sues to evict you. They do this with an Unlawful Detainer lawsuit. Beating an Unlawful Detainer requires strong documentation, money to pay any back-rent owed, and the help of an attorney.

You Must Answer The Complaint In 5 Days
Many people think that all lawsuits take years, but Unlawful Detainers are typically finished in no more than 70-90 days. If your landlord brings an Unlawful Detainer, you must respond within five (5) days, or you will almost certainly lose by default.*

The State of California — and your local Sheriff — are in a rush to kick you out. When your landlord filed that lawsuit, they told the Court that you have already broken the lease, and that you are holding onto the rental unit illegally. They are basically accusing you of stealing the place you live in. Do not waste time. File the Answer ASAP!

*Under some circumstances, such as when your landlord intentionally made it difficult for you to respond by the deadline, and you can prove it, you may be granted a stay or have cause to set aside the default. Call Pettibone Tenant Law for help.

Use Strong Defenses
Two things cause roughly 80% of all Unlawful Detainer lawsuits:

    1. Non-Payment: You are accused of not paying rent at all, or repeatedly paying late.
    2. Damage to Property: You are accused of doing something that damaged the rental unit, such as causing the dishwasher to flood, or significantly damaging the walls.

Other reasons include conducting illegal activity on the premises, substantially breaching some material part of the lease, causing excessive noise or other nuisances after many warnings, or, you are refusing to leave at the legitimate end of the lease term. These are less common, and their defenses are very fact-specific.

While every case is different, and this is not legal advice, there some standard but very strong defenses to alleged Non-Payment and alleged Damage to Property.

Common Defenses to Alleged Non-Payment:
You paid, and you can prove it.
The unit has a habitability defect (flood, rats, mold, etc.) that reduces its value, and you already told the landlord about it.
The landlord took something away (e.g. parking space, storage space, laundry, etc.) before you allegedly underpaid the rent.
You withheld the rent for a valid reason, and you still have that amount in the bank, or in cash, ready to pay.
The landlord or their lawyer made a material technical error.

Common Defenses to Alleged Damage to Property:
You didn’t do it!
You already asked your landlord to fix the problem before it got worse.
The supposed damage is actually minor, or a result of wear and tear.
The supposed damage is not as expensive as alleged, and you can cover.

But…What If I Have No Defenses?
If you do not have any defenses,** or cannot even think of some reason why you should get to stay, it may be in your best interest to find another place and make a payment plan with your landlord.

This is unsettling. However, if you fight and lose, the judgment will go on a public record that all landlords can search. You will also still owe rent, and you may owe your landlord’s attorney fees. The judgment will hurt your credit.

If you leave without settling your rental account, this will be reported on your credit. You will probably be sent to collections.

Even if you win the Unlawful Detainer at trial, you will still owe whatever rental payments the landlord can prove you owe. This is why you have to have the money, or be able to come up with some quick. No Judge will like you if you don’t have what your landlord can prove you owe. Most Judges will straight up ask you to pay up, just to save their time.

**These are not the only defenses that are possible, just the most common. Do not hesitate to call a lawyer, either at Pettibone Tenant Law or a non-profit legal service provider, if you have been served with an eviction suit. No one wants you to lose your home.

But I Can’t Afford You… Or Any Lawyer
If you have no money, and if the only money you have is what you owe for rent, a private attorney is probably not right for you. Even if you qualify for sliding scale UD pricing, you should consider hiring a non-profit organization to represent you.

It is always good to call a non-profit legal service provider. They may end up representing you, or, they may be able to provide free advice while you decide whether or not to hire your own attorney. Here’s a list of major legal service providers in the Bay and Sac areas.

Bay Area Legal Aid – East Bay, South Bay, Napa, and San Francisco:

Housing Preservation

Contra Costa:
Bay Area Legal Aid via Contra Costa County Bar Association http://www.cccba.org/community/free-legal-workshops/tenants-rights.php
Contra Costa Superior Court http://www.cc-courts.org/ud/tenant.aspx
Bay Area Legal Aid – Richmond https://baylegal.org/get-help/find-an-office/contra-costa-county/

Oakland Tenants Union: http://www.oaklandtenantsunion.org
Eviction Defense Center https://www.evictiondefensecenteroakland.org
Legal Assistance for Seniors https://www.lashicap.org
Bay Area Legal Aid – Oakland https://baylegal.org/get-help/find-an-office/alameda-county/

San Francisco:
Eviction Defense Collaborative: http://evictiondefense.org
SF Tenants Union https://www.sftu.org/sched-2/
Legal Assistance to the Elderly https://www.laesf.org/contact
Causa Justa https://cjjc.org

Alameda County:
Alameda County Bar Association: https://www.acbanet.org/pro-bono-legal-services/

Hayward / San Leandro:
Eviction Defense Center https://www.evictiondefensecenteroakland.org

Solano County:
Solano County Bar – Lawyer Referrals http://www.solanobar.org/lawyer-referral-service/
Legal Services of Northern California – Vallejo https://lsnc.net/office/vallejo

Legal Services of Northern California – Sacramento https://lsnc.net/office/sacramento
LawHelpCA https://lawhelpca.org/subtopics/evictions
Sacramento Bar Association https://www.sacbar.org/home/for-the-public/lawyer-referral-and-information-service/

Woodland / Davis:
Legal Services of Northern California – Woodland https://lsnc.net/office/woodland

Bay Area Legal Aid – Napa https://baylegal.org/get-help/find-an-office/napa-county/
Legal Services of Northern California – Vallejo https://lsnc.net/office/vallejo

But My Landlord Is So Wrong! Should I Just Represent Myself?
Generally: No. You may be capable of representing yourself. You may be very sharp, street smart, or tenacious. Even so, you will still be at a severe disadvantage.

Responding to an Unlawful Detainer is a technical and very stressful process. There are many “unspoken rules” of the Court, and, even if you consider yourself well-educated or well-spoken, most judges simply dislike dealing with non-lawyers.

You will have to deal with this judge, your landlord, and/or your landlord’s lawyer all while your home and financial well-being are under attack. You also have to work, or find work, and you may have children or an elder parent to care for. It is always best to hire an attorney to fight on your behalf, because you simply do not have time or experience.

Whomever you hire, make sure to contact them as soon as possible. You may even need to skip a shift at work, or call in sick, because you will almost certainly lose if you fail to file your Answer IN 5 DAYS.

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